Citation Nr: 0808262
Decision Date: 03/12/08 Archive Date: 03/20/08
DOCKET NO. 05-25 782 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hearing loss.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
otitis media.
3. Entitlement to service connection for vision impairment,
hypertension, peripheral neuropathy, and coronary artery
disease, claimed as secondary to service connected diabetes
mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
S. Shoreman, Associate Counsel
INTRODUCTION
The veteran had active service from February 1969 to February
1971.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2005 rating decision of the above
Department of Veterans Affairs (VA) Regional Office (RO).
The RO determined that new and material evidence had been
submitted to reopen the veteran's claims for service
connection for hearing loss and otitis media.
In a June 2005 rating decision the RO granted the veteran
service connection for diabetes mellitus, with a 10 percent
evaluation effective from the July 7, 2003, date of his
claim, and an increased evaluation of 20 percent from
December 2, 2003. The RO denied service connection for
disorders which are now claimed as secondary complications of
the veteran's diabetes.
The veteran testified before the undersigned Veterans Law
Judge in November 2007 at a Travel Board hearing at the RO; a
transcript is of record.
A VA QTC examiner raised the possibility at a December 2004
examination that the veteran has tinnitus, a disorder for
which he did not claim service connection. The issue of
service connection for tinnitus is referred to the RO. In
April 2005, another VA QTC examiner raised the possibility
of aggravation of the veteran's non-service-connected
hypertension by his diabetes mellitus. That issue is also
referred to the RO.
The issues of entitlement to service connection for hearing
loss and otitis media are herein REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
notify the appellant when further action is required on his
part.
FINDINGS OF FACT
1. During his active military service the veteran served in
the Republic of Vietnam during the Vietnam era.
2. Evidence submitted since the September 1998 denial of
service connection for hearing loss is neither cumulative nor
redundant, and raises a reasonable possibility of
substantiating the claim.
3. Evidence submitted since the February 2003 denial of
service connection for otitis media is neither cumulative nor
redundant, and raises a reasonable possibility of
substantiating the claim
4. Neither vision impairment, hypertension, peripheral
neuropathy, nor coronary artery disease has been related by
competent evidence to the veteran's active service or to his
service-connected diabetes mellitus, on either a causation or
aggravation basis.
CONCLUSION OF LAW
1. New and material evidence to reopen the claims of
entitlement to service connection for hearing loss and otitis
media has been submitted. 38 U.S.C.A. §§ 5103(a), 5103A,
5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104(a),
3.156(a), 3.159, 20.302 (2007).
2. Neither vision impairment, hypertension, peripheral
neuropathy, nor coronary artery disease was incurred in or
aggravated by service, nor are any of them proximately due
to, the result of, or aggravated by his service-connected
diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1154(b), 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§
3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits, as codified in pertinent part at 38
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant of the information and evidence not of record that
is necessary to substantiate the claim; to indicate which
information and evidence VA will obtain and which information
and evidence the claimant is expected to provide; and to
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim. 38
U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b). The U.S. Court of
Appeals for Veterans Claims has held that VCAA notice should
be provided to a veteran before the initial RO decision on a
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If,
however, VCAA notice is provided after the initial decision,
such a timing error can be cured by subsequent readjudication
of the claim, as in a Statement of the Case (SOC) or
Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App.
537, 543 (2006).
The U.S. Court of Appeals for the Federal Circuit has held
that, if a claimant can demonstrate error in VCAA notice,
such error should be presumed prejudicial. VA then bears the
burden of rebutting the presumption, by showing that the
essential
fairness of the adjudication has not been affected because,
for example, actual knowledge by the claimant cured the
notice defect, a reasonable person would have understood what
was needed, or the benefits sought cannot be granted as a
matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir.
2007).
In August 2003, the RO sent the veteran a letter informing
him of the types of evidence needed to substantiate his claim
and its duty to assist him in substantiating his claim under
the VCAA. The letter informed the veteran that VA would
assist him in obtaining evidence necessary to support his
claim, such as medical records, employment records, or
records from other Federal agencies. He was advised that it
is his responsibility to provide or identify, and furnish
authorization where necessary for the RO to obtain, any
supportive evidence pertinent to his claim.
The Board finds that the content of the August 2003 letter
provided to the veteran complied with requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's
duty to notify and assist. Subsequently, the June 2005
rating decision and June 2005 SOC explained the basis for the
RO's action, and the SOC provided him with an additional 60-
day period to submit more evidence. It appears that all
obtainable evidence identified by the veteran relative to his
claim has been obtained and associated with the claims file,
and that neither he nor his representative has identified any
other pertinent evidence, not already of record, which would
need to be obtained for a fair disposition of this appeal.
It is therefore the Board's conclusion that the veteran has
been provided with every opportunity to submit evidence and
argument in support of his claims, and to respond to VA
notices.
Moreover, the claimant has not demonstrated any error in VCAA
notice, and therefore the presumption of prejudicial error as
to such notice does not arise in this case. See Sanders v.
Nicholson, supra.
In addition to the foregoing harmless-error analysis, to
whatever extent the decision of the Court in Dingess v.
Nicholson, 19 Vet. App. 473 (2006) requires more extensive
notice in claims for compensation, e.g., as to potential
downstream issues such as disability rating and effective
date, the Board finds no prejudice to the veteran in
proceeding with the present decision. Since the claim for
service connection is being denied, no disability rating or
effective date will be assigned, so there can be no prejudice
to the veteran.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertinent to his claim under the VCAA.
Therefore no useful purpose would be served in remanding this
matter for yet more development. Such a remand would result
in unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veteran Claims has held that such remands are to
be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held
that VA must notify a claimant of the evidence and
information that is necessary to reopen the claim and VA must
notify the claimant of the evidence and information that is
necessary to establish his entitlement to the underlying
claim for the benefit sought by the claimant. Such notice
was provided in the June 2005 SOC.
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a). When there is
an approximate balance in the evidence regarding the merits
of an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102.
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
II. Applicable Laws and Regulations
A. New and Material Evidence to Reopen a Claim
New and material evidence is defined as evidence not
previously submitted to agency decision makers that by itself
or when considered with previous evidence of record relates
to an unestablished fact necessary to substantiate the claim;
which is neither cumulative nor redundant; and which raises a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363
(Fed. Cir. 1998), the Court of Appeals for the Federal
Circuit noted that the new evidence could be sufficient to
reopen a claim if it could contribute to a more complete
picture of the circumstances surrounding the origin of a
veteran's injury or disability, even where it would not be
enough to convince to Board to grant a claim. In determining
whether evidence is new and material, the credibility of the
evidence is generally presumed. Justus v. Principi, 3 Vet.
App. 510, 512-513 (1992).
In Elkins v. West, 12 Vet. App. 209 (1999), the Court of
Appeals for Veterans Claims held the Board must first
determine whether the appellant has presented new and
material evidence under 38 C.F.R. § 3.156(a) in order to have
a finally denied claim reopened under 38 U.S.C.A. § 5108.
Then, if new and material evidence has been submitted, the
Board may proceed to evaluate the merits of the claim, but
only after ensuring that VA's duty to assist has been
fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321,
328 (1999).
Before the Board may reopen a previously denied claim, it
must conduct an independent review of the evidence to
determine whether new and material evidence has been
submitted sufficient to reopen a prior final decision. The
Board does not have jurisdiction to consider a claim which
has been previously adjudicated unless new and material
evidence is present, and before the Board may reopen such a
claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383
(Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1
(1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38
U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and
material evidence has not been submitted, it is unlawful for
the Board to reopen the claim. See McGinnis v. Brown, 4 Vet.
App. 239, 244 (1993).
B. Service Connection
Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1131 (West 2002 & Supp. 2007); 38
C.F.R. § 3.303(a) (2007). Service connection may also be
granted on a presumptive basis for certain chronic
disabilities when manifested to a compensable degree within
the initial post-service year. 38 C.F.R. §§ 3.307, 3.309(a).
To establish service connection, there must be (1) medical
evidence of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
The law further provides that, if a veteran was exposed to a
herbicide agent during active service, presumptive service
connection is warranted for the following disorders:
chloracne or other acneform disease consistent with
chloracne; Type II diabetes; Hodgkin's disease; multiple
myeloma; non-Hodgkin's lymphoma; acute and subacute
peripheral neuropathy; porphyria cutanea tarda; prostate
cancer; respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea); and, soft-tissue sarcoma (other than
ostrosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma). Presumptive service connection for these
disorders as a result of Agent Orange exposure is warranted
if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38
U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).
For the purpose of establishing service connection for a
disability or death resulting from exposure to Agent Orange,
a veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, shall be
presumed to have been exposed during such service to a
herbicide agent, absent affirmative evidence to the contrary
demonstrating that the veteran was not exposed to any such
agent during service. 38 U.S.C.A. § 1116(f).
Thus, service connection may be presumed for residuals of
herbicide agent exposure by showing two elements. First, a
veteran must show that he served in the Republic of Vietnam
during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R.
§ 3.307(a)(6). Second, the veteran must be diagnosed with
one of the specific diseases listed in 38 C.F.R. § 3.309(e).
See Brock v. Brown, 10 Vet. App. 155, 162 (1997). In
addition, the Court of Appeals for the Federal Circuit has
determined that a veteran is not precluded from establishing
service connection for a non-presumptive disease, with proof
of actual direct causation by service. See Combee v. Brown,
34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, supra,
at 160-61.
Service connection may also be granted for disability which
is proximately due to or the result of service-connected
disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet.
App. 439 (1995) (en banc). Moreover, an increase in severity
of a non-service-connected disorder that is proximately due
to or the result of a service-connected disability, and not
due to the natural progress of the non-service-connected
condition, will be service connected. Aggravation will be
established by determining the baseline level of severity of
the non-service-connected condition and deducting that
baseline level, as well as any increase due to the natural
progress of the disease, from the current level. 38 C.F.R.
§ 3.310(b).
The Board notes that 38 C.F.R. § 3.310, above, the regulation
which governs claims for secondary service connection, was
amended during the pendency of this claim and appeal. The
intended effect of the amendment is to conform VA regulations
to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7,
2006), now codified at 38 C.F.R. § 3.310(b) (2007). Since VA
has been complying with Allen since 1995, the regulatory
amendment effects no new liberalization or restriction in the
present appeal.
III. Factual Background and Analysis
A. Hearing Loss and Otitis Media
Service connection for hearing loss was denied in a September
1998 RO rating decision, and service connection for otitis
media was denied in a February 1993 RO rating decision.
Those decisions were not timely appealed, and became final.
See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.
Since those decisions, new evidence has been obtained; it
includes a June 2002 VA outpatient audiological assessment at
which the veteran complained of a progressive decrease in
hearing sensitivity. He said he had trouble understanding
soft speech when there was background noise.
At October 2003 VA outpatient treatment the veteran said that
none of his past treatment had helped, including P.E.
(pressure equalization) tubes. He said that he had
difficulty hearing in most situations. Immittance testing
confirmed middle ear pathology for both ears. Eustachian
tube testing for intact ear drum supported dysfunction. In
audiological testing, pure tone thresholds, in decibels, were
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
30
30
20
25
LEFT
25
25
15
25
30
Speech audiometry revealed speech recognition ability of 100
percent in the right ear and of 100 in the left ear.
The veteran had a VA audiological examination in December
2004, at which he reported that he initially began to
experience hearing problems due to ear infections he suffered
during basic training. He also reported in-service noise
exposure including gunfire, explosions, and aircraft noise.
Clinical evaluation of the ears was within normal limits. On
the authorized audiological evaluation, pure tone thresholds,
in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
30
35
30
40
LEFT
40
25
20
35
45
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and of 94 in the left ear.
The QTC examiner opined that the veteran had conductive
hearing loss due to his in-service ear infections. Since the
veteran had conductive hearing loss, she opined that his
post-service noise exposure was not relevant, because that
would result in sensorineural hearing loss.
The veteran reported at an April 2005 VA audiological
consultation that he had significant military and
occupational noise exposure, and that he had recurrent otitis
media with effusion treated with the insertion of tubes over
the last several years. He was found to have moderate
conductive hearing loss. In May 2005 the veteran had tubes
placed in his ears. He reported that immediately after the
surgery his hearing was back to normal, but a week later the
right side hearing was decreased slightly.
The Board believes that the evidence added to the record
since the previous final rating decisions bears directly and
substantially upon the issue of service connection for
hearing loss and otitis media, and is, by itself or in
conjunction with evidence previously assembled, so
significant that it must be considered in order to fairly
decide the merits of these issues. Therefore, the claims are
reopened. 38 U.S.C.A. §§ 5104, 5108, 7105; 38 C.F.R.
§§ 3.104(a), 3.156(a), 20.1103.
B. Vision Impairment, Hypertension, Peripheral Neuropathy,
and Coronary Artery Disease
The veteran's service medical records (SMRs) do not show any
complaints or treatment for vision impairment, hypertension,
peripheral neuropathy, or coronary artery disease.
December 2003 VA treatment records show that an EKG revealed
a possible old ischemia in the anterior portion of his heart.
Small R waves were present on a prior EKG in 2001, and the
veteran was noted to be at a higher risk of silent ischemia
because of his poorly controlled diabetes.
The veteran underwent a VA QTC examination in December 2004,
at which he reported a three-year history of cardiac ischemia
as a result of diabetes. He said that his heart condition
resulted in shortness of breath and chest pain, and that it
had not been treated with medication. The examining
physician, Dr. S.T., was not able to render a diagnosis
because there was no pathology. Dr. T did have the
opportunity to review the EKG results discussed above, and
noted that an echocardiogram of the heart was still pending.
No significant murmur was discovered during the examination
of the heart. Dr. T opined that the veteran's diabetes did
not cause any complications, including to the veteran's eyes,
heart, skin, kidney, arteries, or nervous system.
In an April 2005 addendum to his examination report, Dr. T
wrote that the chest
X-ray was within normal limits with no acute cardiopulmonary
process and normal heart size, and he felt that the EKG was
normal. The echocardiogram was normal except for an EA
reversal suggesting LV diastolic dysfunction. The veteran
declined to perform a stress test in December 2004 because of
his stated history of chest pain. Dr. T noted that the
results of a December 2003 VA test were incomplete but that
the EKG showed no changes over baseline after stress, meaning
there was no inducible ischemia. Dr. T concluded that the
veteran's diastolic dysfunction was not a complication of his
diabetes.
Also at the December 2004 QTC examination, the veteran
reported an 11-year history of hypertension, for which he was
taking Fosinopril. Dr. T felt that the veteran had a non-
diabetic hypertension condition that was aggravated by his
diabetes. In the April 2005 addendum Dr. T noted that the
veteran was diagnosed with hypertension concurrently with his
diabetes diagnosis in 1993. However, Dr. T still felt that
the hypertension was not a complication of the diabetes but
that it was aggravated by it, because poor glucose control
can lead to elevated blood pressure. Dr. T also opined that
the veteran's hypertension was well controlled by
Fosinopril. At January 2006 VA outpatient treatment, the
veteran's hypertension was described as "at goal."
February 2007 and May 2007 treatment notes indicate that the
veteran's blood pressure was not "at goal."
In January 2005 the veteran had a VA QTC examination to
determine whether he has ocular complications secondary to
diabetes mellitus. The veteran said that he had become more
dependent upon glasses over the past several years. Ocular
examination revealed an uncorrected distance visual acuity of
20/50 in each eye and uncorrected near visual acuity of 20/70
in each eye. The external ocular examination was
unremarkable. The physician diagnosed the veteran with
pinguecula OU and myopic astigmatism and presbyopia. He
opined that the veteran has none of the ocular complications
of diabetes mellitus.
The veteran testified in November 2007 that he has tingling
and numbness in his feet, although he conceded that no doctor
has related it to his diabetes. He also said that his feet
would get hot and tingle when his blood sugar got too high.
As discussed above, Dr. T opined that the veteran's diabetes
did not cause any complications to his nervous system, or
restrictions of activities.
Upon careful review of the evidence of record, the Board
finds that service connection for vision impairment,
hypertension, peripheral neuropathy, and coronary artery
disease has not been established. The statements in the
medical evidence connecting these disorders to the veteran's
diabetes mellitus are a result of the veteran's own reports
of his condition, simply being transcribed. A mere
transcription of lay history, unenhanced by additional
comment by the transcriber, does not become competent medical
evidence merely because the transcriber is a medical
professional. See LeShore v. Brown, 8 Vet. App. 406, 409
(1995).
Although the Board recognizes the sincerity of the arguments
advanced by the veteran that these disorders are secondary to
his diabetes mellitus, the resolution of issues that involve
medical knowledge, such as the diagnosis of a disability and
the determination of medical causation or etiology, requires
professional evidence. See Espiritu v. Derwinski, 2 Vet.
App. 492, 495 (1992). It is true that the veteran's lay
statements may be competent to support a claim for service
connection by supporting the occurrence of lay-observable
events or the presence of disability or symptoms of
disability subject to lay observation. 38 U.S.C.A.
§ 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan
v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay
evidence as potentially competent to support presence of
disability even where not corroborated by contemporaneous
medical evidence). However, these claimed disabilities
require specialized training for a determination as to their
diagnosis and causation, and are therefore not susceptible of
lay opinion as to those questions. The Board finds that
there is no competent and probative medical evidence
indicating that either the veteran's vision impairment,
hypertension, peripheral neuropathy, or his coronary artery
disease was incurred in service (or for many years
thereafter) or is secondarily due his service-connected
diabetes mellitus, by causation or aggravation.
In summary, the preponderance of the evidence is against the
veteran's claim for service connection for vision impairment,
hypertension, peripheral neuropathy, and coronary artery
disease, including as secondary to his service-connected
diabetes mellitus.
ORDER
New and material evidence having been submitted to reopen the
veteran's claim for service connection for hearing loss, the
claim is reopened, and to that extent only, the claim is
granted.
New and material evidence having been submitted to reopen the
veteran's claim for service connection for otitis media, the
claim is reopened, and to that extent only, the claim is
granted.
Service connection for vision impairment, hypertension,
peripheral neuropathy, and coronary artery disease, including
as secondary to diabetes mellitus, is denied.
REMAND
The Board cannot accord significant probative value to the
examiner's conclusions from the December 2004 QTC
examination. The SMRs do not contain treatment for ear
infections, and therefore the examiner relied completely upon
the veteran's accounts for her diagnosis, by noting
"frequent in-service ear infections." See, e.g., Swann v.
Brown, 5 Vet. App. 229, 233 (1993) (generally observing that
a medical opinion premised upon an unsubstantiated account is
of no probative value, and does not serve to verify the
occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461
(1993) (Board is not bound to accept physician's opinion when
it is based exclusively on the recitations of a claimant).
In addition, the examiner did not discuss the origin of the
veteran's otitis media.
Accordingly, the case is REMANDED for the following action:
1. The RO should request that the veteran provide
sufficient information, and, if necessary,
authorization, to enable the RO to obtain any
additional evidence not of record which
pertains to the claim for service connection
for hearing loss and otitis media. The RO
should also invite the veteran to submit all
pertinent evidence in his possession, and
explain the type of evidence that is his
ultimate responsibility to submit.
2. After all available records and/or responses
from each contacted entity have been
associated with the claims file, or the time
period for the veteran's response has expired,
the RO should arrange for the veteran to
undergo a VA examination by a physician. The
claims file, to include a complete copy of
this Remand, must be made available to the
examiner, and the report of the examination
should include discussion of the veteran's
documented medical history and assertions.
a. All appropriate tests and studies and/or
consultation(s) should be accomplished
(with all findings made available to the
examiner(s) prior to the completion of
his or her report), and all clinical
findings should be reported in detail.
b. The examiner should specifically state
whether the veteran's either the hearing
loss or otitis media is at least as
likely as not (i.e., there is at least a
50 percent probability) causally or
etiologically related to his active
service, or whether such a causal or
etiological relationship is unlikely
(i.e., less than a 50 percent
probability), with the rationale for any
such conclusion set out in the report.
3. Thereafter, the RO should readjudicate the
veteran's claim for service connection for
hearing loss and otitis media. If the
benefits sought on appeal remain denied, the
veteran and his representative should be
provided with a supplemental statement of the
case (SSOC).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs